Effective immediately, all New Jersey employers are required to treat pregnancy as a protected characteristic under the New Jersey Law Against Discrimination (“NJLAD”), as well as to provide reasonable accommodations when a pregnant employee requests an accommodation based upon advice of her physician, unless it would cause an undue hardship to the employer.
The purpose of this Client Alert is to address some of the Frequently Asked Questions we have received from our clients about the new amendment to the New Jersey Law Against Discrimination.
What types of reasonable accommodations must be afforded pregnant employees?
Reasonable accommodations include, among other things, bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, modified work schedules and temporary transfers to less strenuous or hazardous work.
What are the variables that determine whether a request for a reasonable accommodation would cause an undue hardship upon an employer?
There are a number of factors that are evaluated under the NJLAD as to whether a reasonable accommodation actually causes an undue hardship, including, among other things, the size of the business, number of employees, type of operations, the composition of the work force, the nature and cost of the accommodation required, and whether the accommodation would require the employer to ignore or waive the employee’s essential job functions in order to provide the accommodation.
When is leave required?
Pregnant employees are entitled to paid or unpaid leave as a reasonable accommodation in the same manner provided to other employees not affected by pregnancy. So, for example, if the employer has a disability leave policy, that policy must be adhered to for any pregnant employee. We recommend that all employers consider the implementation of a disability leave policy, even if they are not required to provide leave under the Federal Family and Medical Leave Act (“FMLA”) or New Jersey Family Leave Act (“NJFLA”) due to the size of their business. Such policy can flexibly permit employers to provide reasonable accommodations while at the same time meet their business needs and objectives.
For example, employers can create an unprotected disability leave policy (assuming they do not have 50 or more employees, in which case they must provide leave under the FMLA or NJFLA) that requires their employees to exhaust their sick, vacation and personal days (paid time off) as a condition of taking such leave. Where an employee requires additional time off beyond paid time off, the employee is placed on unpaid leave with no assurances of being returned to the position they held with the employer prior to taking such leave. The employee’s ability to return to work following the end of his or her disability leave can be evaluated based upon on the employer’s business needs when the employee is in fact capable of returning to work.
Is a separate notice regarding reasonable accommodations or pregnancy discrimination required to be posted under the NJLAD?
No. The Division on Civil Rights requires employers to display the Division’s official poster in a place where it will be visible to employees and applicants. We anticipate that the Division will amend its official poster and employers will be advised to display the new poster as soon as practicable thereafter.